Seeking ‘best practice’ in cases with issues of family violence
As mentioned elsewhere, at the time of this Report the two courts are separate, but it is possible that they will be combined into one Family Court of Australia. In these circumstances - and because of the limited time available in this Review – it is not appropriate to make detailed recommendations about specific procedures. However on the basis of information received during the review some general comments might be useful.
An important issue will be the extent to which each of the courts, or each division of a future single court, will have different procedures.
The existing difference between the courts, noted above, seems to derive largely from the different histories and purposes of the two courts. The Family Court of Australia has always been a specialist family law court, whereas the Federal Magistrates Court has been a generalist court whose work happens to be mainly family law. The Act provides that a person must not be appointed as a judge in the Family Court of Australia unless he or she is ‘by reason of training, experience and personality, the person is a suitable person to deal with matters of family law’.66 There is no equivalent provision relating to Federal Magistrates. Although this is a complex issue and the situation changes from time to time, broadly speaking it seems that the resources available to the Federal Magistrates Court, especially resources relevant to the performance of the distinctive requirements of family law, have been more limited than those available to the Family Court. The legislation governing the Federal Magistrates Court contains objectives that perhaps fit more comfortably with the adversarial model than with the objectives of a family court discussed earlier.
The Family Court’s ‘less adversarial trial’ and the child responsive program
Although this Report will not make specific recommendations about what procedure the courts should adopt, a brief comment on the Family Court’s ‘less adversarial trial’ and the child responsive program might be helpful. These are both procedures that have been specifically developed in connection with children’s cases, and can be seen as reflecting the two objectives of family courts previously identified, namely facilitating the just, quick and cheap resolution of disputes about children; and providing authoritative support for children experiencing conflicted parenting. No doubt these procedures have various advantages and disadvantages, and it is a matter for the courts to assess the evidence on whether they represent the best ways of handling the various types of cases that come before the courts.
In my opinion, however, these processes seem capable of helping the courts deal appropriately with cases involving issues of family violence. In different ways, they have the potential to confront the parents (or other parties) with the children’s experiences, and help them understand and focus on their roles as parents and what each needs to do to support the children’s developmental needs. This approach has the potential to reduce reliance on allegations that are unrelated to the children’s interests, and assist the parties to understand and deal with the consequences that violence will have for the children, whatever the seriousness of the violence, and whether or not it can usefully be characterised as ‘couples violence’, controlling violence’, or in some other way.
Further, the fact that under the Child Responsive Program the communications between the Family Consultant and the family members are not privileged and can be revealed in evidence may help to ensure that the court is informed about issues of family violence. It is an interesting and important question whether litigants generally engage freely in settlement negotiations in circumstances that are not privileged, as in the case of the Child Responsive Program. Information received during the Review suggested that many people seem to discuss the issues remarkably freely in this situation, although some tend to clam up. No doubt one factor is the advice they have received from their lawyers. This is a matter that could be usefully researched, since it relates to the important general issue of the extent to which different dispute resolution processes should be ‘privileged’ in the sense that evidence cannot be given of what is said there.
In thinking about the advantages and disadvantages of different procedures, this aspect should be given careful attention.
A specialist court
In my view the federal court or courts administering family law should specialise in family law. The persons appointed as judicial officers should ideally be persons who have an understanding of family law and a desire to work in that field. The procedures and resources of the court (or courts) should be specifically tailored to the requirements of family law which, as suggested above, are not limited to the adjudication of family disputes but can be described as contributing to children’s interests by authoritative support of children experiencing conflicted parenting. The procedures and resources of the court or courts should also be such that it can form an essential part of the family law system. In my view the capacity of the court to handle all aspects of family law, and particularly to deal with issues of family violence, will be enhanced if it is specially designed, and specially equipped, to deal with family law.
That whatever steps are taken in relation to the future of the Family Court of Australia and the Federal Magistrates Court, the Government should ensure that the federal court or courts administering family law have judicial officers with an understanding of family law and a desire to work in that field, and procedures and resources specifically adapted to the requirements of family law, and particularly to the requirements of cases involving issues of family violence.
Different processes for different categories of cases perhaps, but probably not different processes for each court
It is a fundamental challenge for any family law court to deal appropriately with the wide range of cases that come before it, and this may entail different processes being applied to different categories of case. The Magellan program in the Family Court, by which certain difficult children’s cases are dealt with separately and with increased resources, is a striking example.
In parenting cases especially, categorising cases is no easy task. Sometimes it may seem clear that a case will be particularly complex, or likely to take a particularly long time, or will require additional resources, but often it will be difficult to categorise cases, since the complexities may only emerge as the case progresses. For example, there seem to be some cases where the conflict between the parties is so intractable that it is in the children’s interests that the matter should go to trial and a determination should be made as soon as possible. Perhaps in some such cases the ‘less adversarial’ processes may delay the inevitable and constitute an inappropriate use of limited resources. In many others, no doubt, the parties and the children will benefit from the educational process built into the Child Responsive Program.
If this is correct, it suggests that within each court a choice might be made for the disposition of each case. But it does not suggest that the type of procedure adopted should depend on which of the two family courts happens to be hearing the case. Even if, as intended, the most difficult and complex cases go to the Family Court of Australia (or to the higher tier if the courts are to be merged), it seems clear that few if any of the other cases will be simple or easy. They will also be often characterised by the sort of problems that led to the development of the less adversarial procedures, and the child responsive program, including issues of family violence. Precisely because the community-based dispute resolution processes seem to be working well, the cases that are not resolved in that way and require the courts’ attention are generally characterised by serious problems that can put children at risk in a variety of ways.
Since there are obviously differences of views about the best way of handling these difficult cases, it seems important for the courts to engage in discussion, evaluation and research to try to identify what procedures are most appropriate. That will be no easy task, because it involves, among other things, balancing the need to process cases reasonably promptly – so that delays do not increase – with the need to deal with each case in a way that is most beneficial for the children involved. Nevertheless, in my view it is desirable for the courts to make a choice about procedures and practices. If ‘best practice’ can be identified, it should be followed in each court.
Turning to resources, since parenting cases are dealt with by each court, there is no obvious basis for different services being available to each court. The need for family reports, independent children’s lawyers, and various support services varies from case to case, and it makes no sense for these resources to be more or less available depending on which court hears the matter.
It may well be, of course, that differences in the kinds of cases heard by each court will be reflected in different levels of need. For example, if the most difficult children’s cases are being heard in the Family Court of Australia, as is intended, these cases might require, on average, more specialist reports, involvement by child protection agencies, and other services than the cases heard by the Federal Magistrates Court. But ideally this pattern would emerge because the system correctly identifies the level of need in each case, not because of some arbitrary allocation of resources to each court.
For these reasons, in my view it would be appropriate, especially when the future of the two courts is known, that the procedures of the courts, especially for parenting cases involving issues of family violence, and the resources to be provided to each court, or each tier if there is one court, be thoroughly reviewed.
Such a review would not be an easy task, and would itself require resources. It is my strong impression from information received during the Review that both courts are very hard-pressed to deal adequately with their caseload with their existing resources, and it would be unrealistic to impose on them the major task of reviewing their procedures without providing whatever additional resources the task might require.
That the family law courts conduct a thorough review of their procedures and practices in parenting cases, especially those involving issues of family violence, and that the Government provide the necessary resources to support such a review.
The section 60K procedure and screening for family violence
Section 60K provides, in substance, that the family law courts have certain obligations when a specified document is filed in the course of parenting proceedings. The document, specified in the Family Law Rules, is a Form 4 Notice of Abuse or Family Violence (‘Form 4’), and it alleges, as a consideration relevant to the orders the court should make, that there has been child abuse or family violence, or there is a risk of either. Under the Rules, a party making such allegations is required to file a Form 4. Upon the filing of a Form 4, s 60K requires the court in effect, to consider urgently what immediate order might need to be made. Details may be found in Appendix 2 and Appendix 3.
There is clear and consistent evidence that Form 4s are often not filed in circumstances where the law (by way of the Family Law Rules 2004) requires them to be. In the course of the Review anecdotal evidence was often given to this effect. In addition, the Federal Magistrates Court has indicated that although statistics are not kept, examination of the two lists in 2009 strongly supported the anecdotal evidence: in Albury there were three Form 4s filed in 204 matters, and in Parramatta there were five filed among 102 matters.67 Since it is clear that over half the parenting cases involve allegations of family violence, whatever the true statistical picture throughout Australia it is obvious that in many cases Form 4s are not being filed as the law requires. The submission from the Family Law Section of the Law Council of Australia contains a detailed and instructive critique of section 60K and associated provisions.
Hartnett FM has provided a valuable insight into the problems associated with s 60K from the experience of the Federal Magistrates Court. Her Honour suggested, in effect, that since applicants file an initial affidavit in any event, putting the same allegations in a shortened form in the Form 4 involves costly duplication, and that in any case the allegations are considered, and appropriate measures taken, without the need for a Form 4. In her experience, there is rarely a need to grant an injunction under s 68B because ‘for the most part State domestic violence orders providing for such injunctions, have already been obtained by one or other or both parties’. Also, s 69ZW orders can be made without the need for a Form 4 when the affidavits suggest that the state or territory child protection department has been involved, and in those cases there are usually orders for the appointment of an Independent Children’s Lawyer.68 Her Honour concludes:
Thus the filing of a Form 4, which should trigger those considerations set out in section 60K, seems unnecessary. Matters are independently considered by a judicial officer who is confronted with allegations of family violence set out in an affidavit.
One possible response to the evident problem is to take steps to ensure that Form 4s are filed when they should be. Such measures could include education of the legal profession, and an insistence by judicial officers on compliance with the requirements relating to Form 4s. More drastic measures might be a legislative provision to the effect that costs should be awarded against a party, or arguably a party’s lawyer, if Form 4s are not filed in a case where it is mandatory to do so. Such approaches, however, do not address the reasons that the s60K process is not currently working and seem unlikely to be effective. Another approach would be to narrow the operation of s 60K and Form 4. At present, Form 4s must be filed, and the process in s 60K thereby triggered, whenever there is an allegation of past violence, even when it is not alleged that there is any present risk. The legislation could be re-drafted to limit the s 60K response to cases where there is alleged to be a present risk. It seems unlikely, however, that this would involve a drastic change, since in the majority of cases where family violence is alleged, the party alleging it would be asserting or implying that there is a present risk.
A more fruitful approach, in my view, starts from reconsidering whether s 60K is an appropriate way of dealing with cases involving family violence.
There is, indeed, something odd about having a special procedure, presumably expected to apply in exceptional cases, that actually applies in well over half the parenting cases that come before the court. As was pointed out in one submission, there should be
safety first principles, policies and procedures that recognise Domestic Violence as a mainstream problem affecting a majority of cases going through the Court.69
As some commented in the course of the Review, it might make more sense to have an exception for the minority of cases that do not involve allegations of family violence. Although perhaps uttered as something of a wry jest, this idea seems fruitful, and leads to the idea of having a risk assessment approach to all parenting cases.
There is a powerful argument in my view for a process of scrutiny and triage that applies to all cases, and seeks to identify any risk that requires urgent attention. There is no good reason why that process should be limited to family violence, however defined. Some cases where there are serious problems stemming from mental illness, or serious substance abuse, as well as those involving a proposed relocation, might also call for a swift response.
Such an approach is consistent with the view of the participants at the Wingspread Conference (footnotes omitted):
There was consensus among conference participants that families entering the court system should be screened for domestic violence, but less consensus about how this should be accomplished. The ideal recommended by experts is that more than one method of screening be undertaken. In current practice, screening protocols can include one or more of the following: the administration of a written questionnaire, the conduct of a screening interview, a check of court and public records, and continued watchfulness for evidence of domination and control.
There was consensus that, when cases of domestic violence are identified or when initial screening is insufficient to confirm or rule out the presence of domestic violence, families should be individually considered and referred to appropriate services and court processes. As a part of the screening and review process for each family, risk and protective factors should be identified and mitigated or supported, respectively.
Discussions of screening inevitably reproduced participants' concerns about the use of standardized differentiating characteristics, variables, and patterns in the screening process. If the focus of the analysis is on the identification of a serious incident or recurring incidents of physical violence, for example, a historic pattern of coercive control may be overlooked, and the ongoing risk to family members may not be addressed. To avoid such a circumstance, Jaffe, Crooks, and Bala recommend, and conference participants supported, a multimethod, multi-informant approach to family assessment featuring increasingly intense inquiry as higher levels of conflict and abuse are uncovered. Indeed, effective screening may ultimately require use of a variety of screening tools, each developed for a specific purpose and for potential use at different stages of the proceeding. For example, while the initial focus of screening might concern lethality and safety, that initial inquiry might trigger a mental health or substance abuse assessment or a further screening to assess the appropriateness of participation in dispute resolution processes such as mediation.
The Wingspread participants indicated that there were currently few screening instruments aimed at differentiating among domestic violence cases, but expressed enthusiasm for what is known as the DOVE instrument. The Report states that this instrument ‘links violence prevention interventions with (a) level of risk; (b) the presence of specific types of predictors; and (c) types and levels of violence and abuse’ and has been empirically validated by a two-year field study. There should be, in the courts,
screening protocols with the proven capacity to detect domestic violence, steer families toward appropriate services, and guide judicial decision making, conference participants identified three critical additional challenges related to screening and triage.
The Report stresses that screening procedures must be culturally (and socio-economically) sensitive. Cultural perspectives ‘are relevant both to risk assessment and to the choice of intervention or of custody or access determination’.
The design of screening instruments poses a challenge. They must be ‘sufficiently complex and nuanced to provide accurate information’, yet ‘simple enough to be administered by people with markedly different educational backgrounds and experience levels’.
The Report also suggests that screening protocols should include feedback loops and opportunities for both additional input by the parties and others and procedures for formal challenge.
The report indicates the importance of screening for family violence in the making of appropriate referrals. If family violence is unidentified, the family could be referred to processes that, ‘while helpful to many families, are inappropriate and even dangerous in the particular family situation’, and might not be directed to processes and services that could be both safe and helpful. The Report illustrates this point in the context of referrals to educational services (footnote omitted):
Referrals for parenting education were discussed as one example. In many jurisdictions, parents are routinely referred to parenting education courses that stress co-parenting, ongoing contact, and reducing conflict levels. These messages are ill advised in situations where there has been either a history of violence or a pattern of coercive control. Such parents should be excused from the class or, in the alternative, each parent should be offered, separately, a special parenting skills class that would stress safety planning and parallel parenting and offer domestic violence information and referrals. However, referral to a standard parenting education class could be appropriate (especially if no special class exists) in a situation where a single incident took place at the time of separation and there is no other history of coercive control or abuse. Thus, each family situation must be considered in context and in light of what is helpful and safe for individual family members.
It is beyond the scope of this Report to spell out exactly how the courts should conduct a risk assessment process. While on the face of it a daunting challenge, a number of existing measures can be seen as forming part of an overall risk assessment process. To take a small but instructive example, in one registry an initiative was taken in relation to a particular kind of risk, namely the risk associated with the release of a family report to the parties in cases involving serious violence or child abuse issues. The risk is that release of the report (which may contain damaging findings and comments) could trigger violent actions. It seems that report writers do not always identify such risks. Accordingly, the Manager, Child Dispute Services assesses the risks associated with the release of such reports, and this can lead to the release of the report being carefully managed, a process which is thought to have reduced the risk of violent incidents, and further abuse to children, in some instances. In my view this is a valuable initiative, and an example of one of the many measures that are already being taken, and would form a part of the sort of risk identification and risk management process.
The need for a risk assessment process was suggested in a number of submissions. For example the Federal Magistrates Court submission, as well as making a number of other useful recommendations, referred to the need
To undertake specialist triage/assessment process at an early stage in proceedings where allegations are made of family violence, risk of abuse or harm to children.
Similarly, the National Abuse Free Contact Campaign wrote:
All cases entering the family law system should be screened for the presence of violence or abuse issues and where there is some indication that this is an issue, the case should proceed on a basis of managing and controlling for risks of exposure to further violence and abuse.
It appears to have become widely if not universally accepted that various agencies working in family law need to include screening for family violence as part of their ordinary operation. Legal Aid in Western Australia, for example, has a screening process which provides for a “Coordinator’s assessment” on the suitability of the case for alternative dispute resolution. The form includes a list of matters that need to be identified: whether there is or is not a history of family violence, whether there have been safety issues, whether there are likely to be safety issues at a conference that need to be taken into account, as well as other matters such as whether the parties appear to be physically, psychologically and emotionally capable of participating in a conference. Information received from Family Dispute Resolution Centres and other agencies indicated that such processes are generally in operation. It would be consistent with that if the Family Court itself were to have a general process of screening all cases for family violence and other risk factors.
The development of any risk assessment process could draw on the experience of the Family Court of Australia in a pilot program described in the Court’s Information Paper:
An integral part of the Court’s Family Violence Strategy was the screening and risk assessment pilot which ran at the Brisbane Registry from September 2005 to April 2006 inclusive. The aim of the pilot was to ensure that family violence issues were identified as early as possible in the Court’s process and, where appropriate, safety plans developed with the client to facilitate their safety at court events and maximise their capacity to participate in court events. The pilot was evaluated by Relationships Australia (South Australia) against the objectives of making the Court more responsive to the needs of clients with family violence issues; the development of procedures to revise operational procedures relating to family violence; and to make recommendations on the suitability of the program for roll-out across all court registries. In summary, the evaluation report found that the pilot generated ‘everyday success’ in improving clients’ perceptions of safety at Court. Client feedback showed that the ability of clients to participate in Court events had been maximised by feeling safer before arriving at Court. The Court achieved this with existing staff capabilities through skills training and without significant extra resourcing.
It will be advantageous to examine other work that has been done in different registries, and in different courts, in this area. For example a triage system in operation in the Newcastle Registry was mentioned as a valuable initiative. Again, information received about the operation of the Family Court of Western Australia, and a visit to that Court, indicated that some valuable lessons could be learned by studying the practices there. They included, for example, the fact that an officer of the State child protection authority had an office in the Family Court building, which must have greatly assisted the sharing of information between that authority and the Family Court of Western Australia. A great deal of work has been done on risk assessment in Victoria, manifested in the Common Risk Assessment Framework.
There are already measures in place so that a ‘Safety Plan’ is created in cases where there is reason to fear violence. Such plans specify steps that should be taken in the case, such as ensuring that each party arrives and leaves the court separately, and that there are private and secure rooms for conferences. Information received during the Review suggested that such plans are not always acted upon, and in some cases are placed inside a file, rather than being displayed prominently, with the result that court staff may be unaware of the plan.
When proceedings are commenced, court staff necessarily attend to the documents that are filed. The initial steps, whether involving registrars, family consultants or judicial officers, could have the explicit function of identifying any risks that the case seemed to involve, whether risks from violence at the court or risks to the children from existing or contemplated parenting arrangements.
An important part of the process would be obtaining relevant information from sources outside the court. A great deal of relevant information will often be available, held by police, child protection departments, other agencies and, in particular, family relationships centres and other agencies providing dispute resolution services. If that information could be available at an early stage, the court would be better placed to assess any risk, and deal appropriate with it. One submission said:
In cases where violence or abuse is alleged, all evidence held by all state agencies pertaining to the family should be subpoenaed, collated and assessed. Section 69ZW reports should be routine in all cases where violence or abuse are alleged.70
The matters to be taken into account in such a risk assessment would include a certificate under s 60I to the effect that the matter was not suitable for dispute resolution. Such a certificate should trigger inquiries by the member of the court staff conducting the assessment. If those inquiries revealed concerns about a person’s safety, it would be appropriate for consideration to be given to ensuring that any available documents are available, and any necessary evidence could be given, to enable the judicial officer to be aware of the issues. If the litigant or other person perceived to be at risk is unable or unwilling to give the evidence, consideration might be given to making an application to the court for the appointment of an independent children’s representative.
As this initiative is developed, it may prove useful to reconsider the drafting of s 60I. This raises issues beyond the scope of this review, but I note the following suggestions from the Family Relationships Services Australia:
Currently Family Dispute Resolution practitioners have limited options for passing on information about risks identified to the Family Court where this would be appropriate. The Certificates prescribed in Section 60I of the Family Law Act allow for limited identification of reasons why Family Dispute Resolution is either inappropriate or unsuccessful.
The importance of obtaining evidence from external sources – and the difficulties of doing so within the limited adversarial model – can also be seen from the following passage in the submission by the Federal Magistrates Court:
Evidence from external sources: the FMC seldom seeks section 69ZW etc orders, but relies on the parties being proactive: ‘Courts continue to rely upon the parties to present the material in support of their case by way of presentation of subpoenaed material.’ This becomes more problematic where clients are self represented, as subpoenas are rare in these cases. Therefore, obtaining evidence can require legal aid to be granted.
The crucial importance of corroborative material in violence cases is well illustrated by a case summarised by Hartnett FM:
In this matter a Form 4 was filed alleging actual family violence perpetuated by the father upon the mother and a risk of family violence in that it was asserted the father would continue to physically and verbally abuse the mother including in the presence of the very young child. The Form 4 restated matters deposed to in the affidavit. The mother was legally aided. The mother was in a refuge and supported by a worker in the courtroom. There were cultural issues both parties being migrants.
The father was legally represented. He initiated the proceedings as he was unaware of the location of the mother and child and required a location order to effect service. He also subpoenaed certain medical records and the State/Territory child protection department file.
When both parties were before the court they gave a very different history of their marriage. They agreed however that their child should live with the mother, that each would attend a post separation parenting programme and that they would attend upon a mutually appointed psychiatrist for the preparation of a report to be produced to the Court. The Court ordered an Independent Children’s Lawyer, a family report and supervised time between father and child of three hours each week supervised by a private agency and in the father’s house but with no other persons save the child, father and supervisor to be present. Contact centre involvement was not ordered because of the lengthy wait before ‘time spent with’ could commence, as one of the reasons.
In reaching that determination as to time spent, the Court had to consider very concerning evidence of the mother, denied by the father and of the father, denied by the mother. Both parties had been on anti-depressant medication.
The mother’s evidence was that separation finally occurred as a result of an assault perpetrated upon her by the father. She said he hit her in the face with an open hand causing her to fall and her nose to bleed. She claimed he continued hitting her on the face and head, pulled her hair and screamed abuse about her mother. Family members pulled him off her, she rang the police and they attended the home, arranging for her and the child to obtain temporary crisis accommodation […].
The husband’s case was that he had observed the mother to shake the child and that she had told him that she would kill herself and him and hurt the child. He said he had become so concerned that he had discussed the mother’s behaviour with his general practitioner. As to the violent episode which commenced the separation, the husband’s evidence was that:
“She had been angry with me for a few days. She came into the room and started pushing and punching me and punching herself. I tried to stop her but she kept punching herself. We fell onto a wardrobe. She punched herself in the head and her nose bled. This self-harming behaviour continued for about five minutes.”
The father claimed that he had the support of his Doctor – that it was very dangerous to leave the child with the mother – and that his Doctor had conveyed this view to the State/Territory child protection department.
The Court was told Counsel for both parties had inspected the subpoenaed material. The material was not introduced into evidence. There was a concession that the child should live with the mother and submissions that the subpoenaed material supported the mother’s case. Without that material which the father’s Counsel subpoenaed on the first ex parte date, this case would have been extremely difficult to determine and the parties may well have reached no consensus. The police record of attendance on the evening of separation would have been of great assistance but had not been subpoenaed by either party…
An obvious difficulty here is that some of these records, including the records of the dispute resolutions services, will be confidential, as a result of legislative provisions that both prevent the officers from disclosing the material, and prevent it from being admitted into evidence. The confidentiality of the process comes at a price, because it seems clear that the protection of children and other family members would in some cases be enhanced if the material were available.
The question whether the rules about confidentiality should be modified to allow the information to be available to the court is a large question that falls outside the reasonable scope of this Review, as does the relationship between the court and other parts of the family law system. For this reason I simply note that in my view the court’s ability to conduct a risk assessment process, and its capacity to protect the children and families that come before it, would almost certainly be enhanced if it had access to relevant information held by external agencies, including dispute resolution agencies. It would be appropriate, in my view, for this issue to be separately considered.
Finally in this connection, a process of risk assessment in all parenting cases might well cast light on a vexed issue, the relationship between the functioning of the family law courts and family violence orders made by state and territory courts. A number of submissions dealt with this issue, although it is outside the Terms of Reference of this Review.71 It seems clearly desirable that urgent matters of a family character should be able to be dealt with quickly and effectively by the specialist family court, rather than litigants routinely going first to a state or territory court. Such a system, ideally involving only one court, would have obvious advantages, including removing the problematical issue of the weight the family law courts should give to family violence orders made in other courts.
That the Government consider amending s 60K so that it provides that in each parenting case the court must conduct a risk identification and assessment, rather than providing for the filing of a document that will require the courts to take particular actions.
That the Government consider the most appropriate ways of conducting such a risk identification and assessment, having regard to the resources available to the courts, and to the possibility of arranging for the assessment of risk to be conducted in part or whole by an external agency.
That the Government consider amending provisions of the Act relating to the confidentiality of information held by agencies outside the court, including dispute resolution agencies, so that information relevant to the assessment of the risks from violence or other causes could be more readily available to the courts.
One of the greatest practical problems in cases involving family violence issues is what to do in interim cases. In many cases, there will be serious allegations which, if accepted, might mean that contact with a parent or other person might expose the children to risks of violence, neglect or abuse. But these allegations are usually denied. At the interim stage, there will often be little in the way of corroborative evidence or detail, and, in any case, there will be no time to cross-examine witnesses. In these cases the judicial officer will often be unable to make a finding about the likely truth of the allegations, and thus unable to reach a confident view about what arrangements are likely to be best for the children in the period – which may well be many months – before the final hearing.
A valuable description of the everyday experience of violence cases in the Federal Magistrates Court is provided by Hartnett FM:
These lists often contain in the vicinity of 25 upward to 30 matters each day. This is a reduction from the earlier times in the history of this Court when 40 or more matters a day were listed. What proportion of the duty list matters involve solely parenting cases is dependent on the Registry. In the Federal Magistrates Court Dandenong Registry the percentage is higher than in the Melbourne Registry. In those cases something over 50% (with the percentage being much higher in Dandenong) involve allegations of family violence of the severe kind. Here is one example, taken from a duty list where approximately one third of the list contained affidavit material of not dissimilar content:
“He regularly hit us with a belt and punched us. He used to pour cold water on the children, saying that it was good for them. The husband would light matches and flick them at the children. He used to pull the child’s hair. He would make the children sleep with no clothes on even when it was cold. The husband was very violent to us regularly”
and later with reference to the children’s school notifying the Department of Human Services. The children had:
“visible bruises and marks on them from the husband’s assaults”.
Most of the allegations of family violence are made by women against men. It is usual for the party making the allegations to be represented. Generally speaking, where the other party is represented there is a denial of the allegations and sometimes counter-allegations. Where text messages are annexed to an affidavit there is often a defence of “put this in context” and wait until the Court sees the similarly abusive and threatening texts forwarded by the party putting the texts into evidence. Where severe family violence is alleged and no response is provided then that can often suggest that other probative evidence may be available to support the assertion, for example, hospital records or police involvement and thus admissions, although qualified, may be able to be obtained.
At a first hearing date, there is a lack of opportunity to test evidence save in a very rare case. Considerable time could be spent by each Federal Magistrate on each individual case. Perhaps telephone calls could be made to the Department of Human Services, to hospitals and to schools to ascertain the veracity of some of the claims made given the absence of subpoenaed material or other evidence of probative value. This on occasion does occur. Relevant medical histories could be explored including any attendance upon a psychiatrist but of course the other party has to know about that attendance in the face of non-disclosure by the attending party. Mental health issues loom large in family violence matters. But in a busy duty list, where consent, undefended and interim judicial determination orders are made and where litigants in person require particular assistance, there is limited time. So the opportunity to have an in-depth investigation is not present at these hearings.
Interim proceedings thus pose problems that are no less agonising because they are familiar. A decision to allow unsupervised contact might preserve the children’s relationship with the other parent, but might (if the allegations are true) expose them to serious risk. On the other hand, making orders that protect the children from such risk will almost inevitably mean there will be very little contact between the children and the other parent, who may not, in fact, be a danger to the children. This problem will be most acute where there is to be a long period before the final hearing, especially if there are no places available, or if there are long delays for places, in child contact centres.
In practice, the decisions made in interim situations can sometimes create a situation for the children which will be difficult to change when the final hearing eventually comes on. The result will be that the interim decision, made on inadequate material, will in effect determine the final outcome. Partly for this reason, and partly because of the emphasis in the legislation, when both parties are seeking to have the child live with them most of the time, there is a temptation for the judicial officer to make orders that the children should spend equal time with each parent. Such orders may appear to have the advantage of being fair as between the parents, preserving the opportunity for each parent to argue at the final hearing that the child should mainly live with them. But such orders might impose an equal sharing arrangement on children where this is not in their interest. In some cases, it might be better for the children to be mainly with one parent, even perhaps with either parent, than to have their time equally divided. The problem is not with shared care as such – that might well be the right answer for some children. The problem is that this approach leads to decisions which have more to do with preserving the rights of the parents than doing what is best for the children. But how can this problem be avoided, since the limited, rushed hearing does not enable the judicial officer to identify what would be best for the children?
The problem will be avoided, at least for the courts, if the parties can settle the case. It is understandable that a judicial officer in such circumstances will do everything possible to persuade the parties to reach agreement. This is especially so if there are numerous cases listed for attention that day: a list of 30 cases is not uncommon in the Federal Magistrates Court. The pressure of such cases, and the difficulty of identifying the outcome that is likely to be best for the child, can easily lead judicial officers to be brisk and impatient with anything that seems inessential. It is not surprising that many of those who presented individual stories in their submissions said that they felt they had been ignored, or that the judicial officer was ‘not interested’.
In such circumstances – and these are typical circumstances of the duty lists of the family courts every week – it is impossible for the court to give to issues of violence the attention they require. Doing so in a particular case would be likely to mean that most of the cases listed for that day would have to be deferred to another day – and so the list of waiting cases, and the length of delays, would grow.
It is arguable that in some ways these problems are exacerbated by some features of the legislation as amended in 2006. But even if this is so, that is not the only or the main source of the problems. The dilemma facing courts in interim proceedings, the tension between protecting children from risk and maintaining the contact with both parents, was a familiar one before the amendments of 2006 (and before those of 1995) and remains a familiar problem in other jurisdictions that have different legislation.
One way of seeking to address this problem is to provide assistance to the judicial officers in handling these situation. The Family Court’s Best Practice Principles include a helpful list of matters that will ordinarily need consideration in interim hearings. First, they refer to
The likely risk of harm to the child, whether physical and/or emotional, if an interim application for a child to spend time with a parent against whom allegations have been made is granted or refused.
Second, they provide that if the Court decides that it is in the interests of the child to spend time or communicate with a parent against whom allegations have been made, it should consider what directions are required to give effect to such order(s), and in particular:
whether time spent with the other parent should be supervised;
if so, whether or not that supervision should occur at a child contact centre;
if not, where the time spent should take place and who should supervise it;
times for the visit and places of exchange;
who should be permitted to attend the appointment with the parent;
who will bear the costs of the supervision, and in particular;
what other arrangements should be put in place (including an order under section 60CG(2)) to secure the safety of the child and the parent with whom the child is living before, during and after any time spent with the other parent.72
Finally, the Principles suggest that the court might usefully consider
Whether a parent or parents seeking to spend time with a child should attend a post-separation parenting program pursuant to section 65LA or seek advice and/or treatment pursuant to section 13C(1)(c) as a precondition to such an order or as a means of assisting the Court in ascertaining the likely risk of harm to the child from that person at the final hearing.
These are valuable guidelines. This Report recommends training and education for judicial officers as well as others in the family law system, and I believe this will also assist the ability of the system to deal properly with cases involving issues of family violence.
This Review has underlined the critical importance of interim proceedings, and the problems posed, especially in cases involving allegations of violence. It is likely that some improvement will result from a systematic screening for family violence, and from improved educational opportunities for courts staff, lawyers and other professionals, and additional guidance such as is contained in the Best Practice Principles.
However on the material available to this Review, the problem is not primarily related to the performance of judicial officers. Additional judicial and other resources will be required if we wish to improve the family courts’ ability to protect children, especially from the consequences of important decisions based on inadequate and untested evidence, that might expose the children to risk of harm, whether by being exposed to the risk of violence or by being separated unnecessarily from a parent. Children would undoubtedly be much safer if through legal aid or otherwise the parties and the children were properly represented, and the number of judicial officers was such that each case could be given the attention it deserved, without causing unacceptable delays in the hearing of other cases.
That the Government consider providing the family courts with the additional resources necessary to ensure that adequate attention can be given to children’s cases in interim proceedings, especially cases involving allegations of family violence.
Parties’ agreement on parenting arrangements can take various forms. At the simplest, the parties might simply put the proposed arrangements in place, never having commenced legal proceedings. They might make a parenting agreement, which would not be legally binding and would not be reviewed by the court or any other third party. Alternatively they might seek consent orders. Consent orders can be made at any stage of proceedings. Often, they are sought when proceedings have been commenced but before any court hearing. Sometimes they are sought after interim orders have been made, or after a family report has been published. Sometimes they are sought after the final hearing has commenced and some evidence has been received. In these latter circumstances, the parties will normally invite the judicial officer who has handled the matter to make the consent orders. In such cases, the judicial officer may well have considerable knowledge of the case. Where the parties seek a consent order before any hearing has occurred, especially when few or no affidavits have been filed, there may be very little information before the court.
In the family courts as much as in other courts, the functioning of the system depends on most cases ending with consent orders rather than adjudicated outcomes. The courts’ resources fall well short of what would be required if each case that was commenced proceeded to judgment.
But while agreed outcomes are always welcome because of their benefits for the family law system, whether those outcomes are necessarily in the children’s interests is another matter. Where the agreed outcome represents a reasonable compromise of the dispute, and is based on the best interests of the children, the outcomes will almost certainly benefit the children, especially by bringing the costs and stress of the litigation to an end. In many cases, it will matter most to the children whether they feel loved and cared for by both of their parents, whatever the details of the parenting arrangements happen to be.
On the other hand, an agreed outcome – a ‘settled’ case – may result from factors other than a reasonable and child-focused compromise. One or other party may feel that they have no alternative but to accept a proposed settlement for reasons that have nothing to do with the child’s best interests. A parent may fear that unless he or she accepts the settlement, the child or other family members might be at risk of violence or abuse. A parent may abandon a case because he or she has run out of money, or legal aid has been withdrawn. A party might settle because he or she fears that the result of not settling might be even more disadvantageous than the proposed settlement. A party might be misled by advice to the effect that the court would not accept certain types of evidence because of prejudice. A party might be daunted, or misled, by remarks of a judicial officer anxious to ensure that the case settles. In the most serious cases, an agreed outcome could result in a child being in the care of a dangerous or abusive person.
It is clear that some children may be at risk as a result of the arrangements put in place in accordance with consent orders. What can be done to avoid or lessen this risk?
On the strict adversarial model, the merits of the arrangement for the children in an agreed outcome would not be an issue. But it is clear that the making of consent orders, as much as the making of other orders, must be based on the best interests of the child.
There are limits, however, on what the court can do when presented with proposed consent orders.73 It can refuse to make the orders – but doing so would not prevent the parties simply going ahead and putting in place whatever arrangements they had asked the court to sanction. It can also refer the papers to the police, or a state or territory child protection department, and this may be appropriate where there are fears of risk to the child. The court, if concerned about the children’s welfare, might also consider referring the parties to some agency for counselling or assistance: but since it had received no evidence, it might not be possible for it to make such an order. Finally, the court could consider saying to the parties that it would make the consent order only if they, or one of them, attended some counselling or other program. Here again, however, it could do nothing if the parties simply declined, and put the arrangements into place without the court’s sanction.
The problem is addressed in the Family Court Best Practice Principles. They identify various matters that could be considered in cases where there is concern about violence: the seriousness of the allegations, indicators of pathological jealousy, stalking, and the like; whether it is clear that there has been real consent to the proposed orders; the attitude of Independent Children’s Lawyer, and other significant matters. The Guidelines also indicate measures the court might take:
Ordering the preparation of a Family Report.
Ordering the appointment of an Independent Children’s Lawyer.
Requesting a Family Consultant to interview one or both of the child’s parents and, where appropriate, the child or children and reporting back to the Court.
Ordering a section 69ZW report.
Hearing evidence to determine whether or not a parent has behaved violently or abusively towards the other parent and/or the child or children, or whether a parent with whom a child is to spend time presents an unacceptable risk.
Referring one or both parents to an appropriate service and adjourning the proceedings.
The Principles also say that if the Court forms the view that it is in the best interests of the child to make the orders sought by consent and those orders provide for a child to spend time with a person against whom allegations of family violence have been made, the Court may wish to give consideration to delivering a short judgment explaining why the Court has agreed to make the orders sought.
In my view these provisions are appropriate. I have considered whether any of these elements should be placed in the Rules and made mandatory. On balance, on the material before me I would not recommend this. It is important, in my view, that the Principles be better known, and steps should be taken to achieve this. If this proved impossible, it might be appropriate to reconsider whether the Rules should deal with the problem. However there are resource implications involved – for example, opinions might differ about whether the judicial time that would be put into preparing reasons in these consent cases might be more fruitfully employed by hearing other cases.74
Is it appropriate to consider also r 10.15A of the Family Law Rules 2004, which applies to allegations of child abuse, though not to family violence. Rule 10.15A applies in the Family Court of Australia but not in the Federal Magistrates Court. It provides, in substance, that if an application is made for consent orders during a hearing or trial each party, or the party’s lawyer, must advise the court whether there have been allegations of child sexual or other physical abuse or risk of abuse; if there have been such allegations, the party or lawyer ‘must explain to the court how the order attempts to deal with the allegations’.
This rule is perhaps awkwardly phrased - what the order needs to deal with is any risk to the child, not the allegations themselves. In some cases, presumably, the agreed outcome would be such as to protect the child from the risk that would exist if the allegations were true. In others, however, the parties might agree on an outcome that would entail risk for the child if the allegations were true. Such a situation might come about if the person making the allegations had accepted that they were mistaken; or if the person making the allegations had come to the view that although true, they would not be accepted by the court. If at the time the consent orders are made the parties remain at odds about the truth or seriousness of the allegations, presumably their respective lawyers would need to indicate this to the court. This might be desirable: the court would be aware of the problem, and could at least think about what measures to take. It might, for example, refer the matter to the state or territory child protection department.
In my view r 10.15A potentially serves the important function of drawing the court’s attention to the problem where there are allegations of child abuse. However the Family Law Section submitted that many judicial officers are unaware of the rule, and recommended that it be deleted. By contrast, the National Legal Aid Submission, starting from the same finding that the section was not much used, urged that it be clarified and extended to include family violence.75
If the rule is valuable, I see no reason why it should not apply in both courts. On balance, however, I do not think that there is sufficient material before this Review to justify a recommendation that it should be extended to apply to allegations of family violence. Of course the courts may wish to reconsider this if more information comes to light.